Accepting Justice Kennedy's Dare

Accepting Justice Kennedy's Dare: The Future of Integration in a Post-PICS World

Abstract: In the wake of the most important public schools case in decades, Parents Involved in Community Schools (PICS), the future of diversity in public schools is in doubt. This period of uncertainty comes at a moment when parents, educators, and employers are demanding high quality schools that prepare students for an increasingly globalized world. Justice Anthony Kennedy, in his PICS concurrence, recognized this and challenged districts to continue the important work of bringing different students together without resorting to unconstitutional means. Filling the void between what is essential to public education and what is constitutionally permissible after PICS, the public schools of Jefferson County (Louisville), Kentucky, one of the districts rebuked in PICS, have accepted Justice Kennedy’s dare by crafting a nuanced and race-conscious student assignment plan aimed at promoting broadly-defined diversity and increasing the quality of education across the district.

The article argues two distinct points. First, it argues that the new plan is a constitutionally permissible response to PICS. Second, it argues that the new plan’s broadening of both the definition of diversity and the mission of a school district represents the beginning of a new post-Brown era that is responsive to the realities of public education in the 21st century. By tethering its analysis of PICS - and specifically of Justice Kennedy’s concurrence - to a specific response to that decision, the article provides a detailed analysis of the new constitutional framework in this area. Ultimately, the article argues that because it is both constitutional and educationally-relevant, the new plan represents the future of integration for any district willing to make the commitment to providing the educational benefits of diverse public schools to its students.

This article appeared in the Fordham Law Review.  The full article is available here.

Wash Post OpEd: Obama's Subtle Hurdle

Just 46 years ago, riots erupted at the prospect of an African American man enrolling at the University of Mississippi. The progress our country has made on race was brought into focus Friday night when Barack Obama, the first African American presidential nominee, arrived at Ole Miss, where James Meredith's matriculation sparked clashes in 1962. Unfortunately, instead of frank considerations of the racial issues that persist in America, the discussions that have accompanied Obama's candidacy have frequently unfolded in ways unlikely to foster progress on interracial dialogue.

 Undoubtedly, Obama's race is playing a role in this election. It has helped him generate enthusiasm among African American and white voters. Conversely, some people simply will not vote for him because he is black. Precise numbers will be known only within the voting booth, but social science research on racial attitudes in job candidate evaluations sheds some light on how race may be affecting our collective judgment.

Selecting a candidate to vote for, after all, is like making a hiring decision for the country's top job. Studies of " aversive racism" have shown that when reviewers compare identical résumés of black and white job applicants, white candidates are rated more highly than black candidates. Paradoxically, this discrepancy becomes more significant the more qualified the candidates are. While modestly qualified candidates of different races may be evaluated relatively equally, higher-qualified African American candidates are, on average, subjectively judged to be inferior to white candidates whose credentials are objectively identical. The discrepancy is exaggerated when the job to be filled is superior to the job held by the evaluator. Part of the reason is that while white candidates were considered "highly skilled," black candidates were considered "fortunate," the implication being that results based on skill are likely to be repeated, whereas those based on luck are not.

In the majority of these evaluations, individual racism or racial prejudice is not driving the evaluators -- each evaluator is earnestly attempting to select the best applicant. Yet, the research pioneered by Jack Dovidio and Sam Gaertner, among others, suggests that African American job candidates must be objectively more qualified than white applicants to be subjectively perceived as the best candidate. It seems reasonable, then, that the same type of earnest but biased evaluation could be affecting Obama's campaign.

Commentators have not shied from citing the influence of race on Obama's prospects. Recently, some have argued that only racism is to blame when trying to explain why the Democratic nominee had not pulled further ahead in national polls. Others have called cries of racism an excuse for Obama's inability to assuage voters' genuine questions about his readiness for the job. But ignoring or minimizing the effect of race -- pretending that criticisms of Obama's readiness or elitism or good fortune are entirely independent of the color of his skin -- is to minimize the lasting impact of our nation's history of race relations.

The effect that race has on Obama's campaign is far more subtle, and powerful, than the ballots of those who reveal their closeted bigotries only inside the voting booth. Millions of Americans have been breathing the smog of racial stereotyping their entire lives; their decisions, like those of the evaluators in the studies, are unsurprisingly affected.

In Oxford, we could see how much progress our country has made. Rather than continuing accusatory conversations on race that only serve to thicken the smog, let's move forward recognizing both how far we've come and how far we have yet to go toward perfecting our union.

See the Washington Post version here.

Exploded Dream: Desegregation in the Memphis City Schools

Abstract: This article is a comprehensive look at the story of school desegregation in the Memphis City Schools. Beginning with the Brown v. Board of Education decision that ended segregation in schooling, the article traces the steps taken in Memphis to put the Brown decision into practice. Following a period of inaction and delay, the Memphis City Schools experienced a relatively peaceful transition as token desegregation took place in the early part of the 1960s. However, after the assassination of Dr. Martin Luther King, Jr., in Memphis in 1968, the community's polarization was globally exposed and further progress on school desegregation was limited. After federal courts ordered busing to implement the Brown mandate, a quarter of the district's white students departed for the nearby Shelby County Schools or for a growing, and uniquely successful, system of private schools. Since the busing order, the white population in the Memphis City Schools has steadily declined so that by the 50th anniversary of the Brown decision, a district that had been 58% white and 42% black in 1954 was 86% black and 9% white in 2004. Using the Northcross v. Board of Education of the Memphis City Schools litigation as a guide, this article traces that history, putting Memphis in the context of the larger desegregation story.

This article appears in the journal Law and Inequality: A Journal of Theory and Practice, published at the University of Minnesota School of Law.  

The full article is available here.

Message to City School Students: Buzz Off

Dear Students of the Memphis City Schools:

I hope you have not been watching too much of the news these days. Your collective future is being used as a pawn in a shortsighted game of "pass the buck," with new developments by the day. I am writing this letter to you because you and your interests have been wholly absent from this conversation. It is imperative that we, the adults of Memphis, remember that what is happening right now is happening to you.

As the mayor and City Council and school board and state argue over who is responsible for your education, the fact remains: We are all responsible. We, the parents. We, the teachers. We, the principals and administrators. And we, the elected officials. We are all responsible because it is not just your future that is at stake, but ours as well. Unfortunately, many of us refuse to acknowledge this.

Take our City Council's decision earlier this month to cut funding to your schools. Now, we could have had an adult discussion about how best to address mismanagement and inefficiency in the district while also making absolutely certain that your education would not be affected. But we never had that discussion. Instead, the City Council made the unilateral decision to drastically reduce your funding.

The damage done by the City Council's action is not limited to the short-term budgetary mess that has been created or the lawsuit the school board filed this week in an attempt to rescind the budget cuts -- though both of those will be huge distractions from the district's primary mission of education. The most significant damage comes from the signal the action sends: The Memphis City Schools are not worth supporting. While the technical substance of the council's action may have been fiscal, there can be no mistaking the message that supporting the city schools is not a high priority.

That signal was sent to you, with likely consequences for your engagement in school. It was sent to your parents, who have entrusted your future to public education and now know precisely where public education sits on the city leadership's priority list. And it was sent to the larger community, upon whom you depend for support, and ultimately, funding.

Unfortunately, this is not the first time you have been pawns while the adults argue. In the 1970s, the City Council threatened to withhold funds to the district and actually sued the Board of Education for complying with a federal order to institute busing. In that instance, as here, the students' future was second to political gain as adults chose shortsighted confrontation over collaborative discussion about students' best interests. After all, it is the best interests of students such as you that ought to be foremost in our minds when deciding these issues.

The most significant lasting impact from that era in civic history was the erosion of public support for the Memphis City Schools, a district that educates the vast majority of the Mid-South's future work force. That erosion can be directly linked to the recent City Council cuts. There is apparently no more political consequence for condemning the city schools.

That does not mean that your future does not matter. Indeed, we all have a stake in your future whether we know you or not. If you are not prepared to work in a 21st century economy, then our community will be stuck economically, or will move backwards. All of the problems that plague us today -- crime, poverty, stagnant development -- become more intractable with every single dip in public support for the Memphis City Schools, whether individual (a Memphian who disparages the schools with glee) or institutional (a City Council that cuts funding because there is no legal obligation to support the schools financially).

Missing during the community confrontations over busing were honest and credible adults with the courage to push students' interests to the fore of the conversation, regardless of the political or social consequences. Those adults remain few and far between today.

To protect your future and ours, those of us who are discouraged when your education is deemed unworthy of our support (and dollars) should do our part. We must hold leaders who contribute to the erosion of public support for your schools accountable by filling their in-boxes and mailboxes with letters of dissatisfaction, and when necessary, using our power at ballot boxes. We must confront our friends who seem to take pride in disparaging the city schools with the fact that our future as a city rests on your shoulders. We must push those friends and ourselves to contribute to solutions rather than to the problem. If we are parents, we must push you to your potential and hold both you and your teachers accountable for taking education seriously.

There already was much to be done to provide you the tools you need to make our city maximize its capabilities. Now, there is the added burden of undoing the damage done over the last several months. But if we are to move forward as a community, we'd better be up to the task.

[NOTE: Originally published in Commercial Appeal, June 20, 2008. I had nothing to do with the title and might have chosen something a bit less sensational, like "Interests of Students Lost Amidst Funding Debate" - oh well!]

Book Review - Enrique's Journey

There are 10 million undocumented immigrants in the United States today, give or take a couple million. That’s 10 million stories of individual human beings fleeing their homes, often leaving families behind, for the chance of a better life, even a life lived in constant fear of deportation, in the United States.

The American immigration debate can be overwhelming, but the individuals most affected by immigration policy are largely invisible – undocumented immigrants are, by definition, absent from public forums. In the absence of tangible people that represent the complexities of immigration to the United States, many of us are left with a very impersonal sense of what is a very personal issue.

Enrique’s Journey makes the impersonal personal. Author and journalist Sonia Nazario, spurred by a surprising conversation with her nanny, set out to shed light on the individuals at the center of American immigration debates. What follows is a book that tells the story of immigration in 21^st century America in a way that illuminates the motivations and struggles of immigrants and the impact their decisions to come to America have both on our country and on the countries and families they leave behind.

Enrique is a Honduran teenager whose mother left for the United States when he was 6, promising to return within a year or two after making enough money to build a moderately prosperous life in Honduras. After years of promises that his mother will soon return, Enrique tires of waiting and sets out on a dangerous journey through Mexico, often atop freight trains and never more than one wrong decision away from deportation or death.

The journey itself is certainly mythic, but Nazario is careful not to mythologize her characters. Enrique and his mother are both human (and by human, I mean imperfect) and are attempting to struggle through a life that has presented them with difficult circumstances. In Honduras, they are poor. Enrique’s parents are separated and the Honduran economy provides little opportunity for women older than 25. Faced with the likelihood of an impossible life, Enrique’s mother opts to flee to the land of opportunity. From the United States, she is able to send money to her family that helps provide an education for Enrique and his sister, clothes, and food that would be impossible to afford otherwise. But the land of opportunity has its limits. Her savings are never enough to return to Honduras. When Enrique decides to attempt to follow his mother to America, it is clear that she has given up on returning.

It is incredible the lengths people go to reach our country for even the small opportunities Enrique’s mother is afforded. That millions of people flee their homes, often leaving family behind, for those opportunities says a great deal both about the allure of the American dream and the desperation felt by the impoverished in their home countries. These are not easy decisions and the life of an undocumented immigrant is consumed with the ambiguities and consequences of such decisions – consequences that affect families and nations alike.

Would Enrique’s family have been better off had his mother remained in Honduras or is the economic benefit they receive worth a life without a mother? This is not just a question for Enrique’s family. Immigrants send $30 billion a year back home – a not insubstantial portion of home country’s economies. Yet, in Honduras, huge numbers of parentless children, like Enrique, have fueled rampant growth in juvenile delinquency and gangs. These are impossible choices.

And obviously, undocumented immigrants make an impact on the United States as well. There is certainly room for debate on immigration policy and I don’t intend to tackle that here. However, in considering the questions raised by the presence of large numbers of undocumented immigrants, Enrique’s Journey provides readers with one family’s story, warts and all, to make that debate more personal. Even if Nazario didn’t provide a fascinating narrative (which she does), that humanization of the invisible makes the book worthwhile.